Florida s DOMESTIC VIOLENCE BENCHBOOK

Transcription

1 Florida s DOMESTIC VIOLENCE BENCHBOOK September 2008 Office of the State Courts Administrator This project was supported by Grant No WF-AX-0062 awarded by the Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice or the Florida Department of Children and Families.

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3 INTRODUCTION Education enhances the knowledge and skills of the judiciary and therefore contributes to the administration of justice. To further assist in the administration of justice, the Office of the State Courts Administrator (OSCA), Office of Court Improvement (OCI), developed Florida s domestic violence benchbook in 2005 to address the highly litigated legal issues in domestic violence cases. OSCA created and continues to update the benchbook in order to assist both new and experienced judges in Florida who are assigned to hear domestic violence cases. The benchbook features : Chapter 741 Flow Chart Checklists for Domestic, Sexual and Repeat Violence Domestic Violence Colloquy Domestic Violence Legal Outline Best Practice Model on Child Support in Domestic Violence Cases Summary of 2008 Legislative Session Comparison of Chapter 741 and 39 Injunctions Domestic Violence Related Articles and Publications Applicable federal law and critical case law are also included. The information contained in the benchbook focuses primarily on civil domestic violence proceedings; however, its Domestic Violence Legal Outline includes informative sections that address evidence and violence issues in criminal proceedings. Due to the length of the legal outline, a separate table of contents is included for that section. Our office intends to update and supplement the benchbook periodically. Accordingly, we invite suggestions for future publication and ways this publication can be made more useful to judges hearing domestic violence cases. Please provide comments and suggestions to: Kathleen Tailer, Office of Court Improvement, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida, You may also send comments and suggestions via tailerk@flcourts.org, or phone: 850/ Upon request by a qualified individual with a disability, this document will be made available in alternate formats. To order this document in an alternate format, please contact Office of Court Improvement, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida, Phone: 850/

4 ACKNOWLEDGMENTS This publication was originally developed with the assistance of Judge Karen K. Cole, Judge John C. Cooper, Judge Robert Doyel, Judge Amy Karan, Judge Kathleen Kroll, Judge Frederick D. Smith, FSU College of Law Professor Robert Atkinson, the Department of Children and Families, FSU Law Review Office Manger Brenda Ellis, Tenth Judicial Circuit Family Court Manager Cherie Simmers, and other Domestic Violence Coordinators throughout the state. The Office of Court Improvement is also grateful to the following Domestic Violence Strategic Planning Workgroup members who assisted with editing section XVII of the Civil Domestic Violence/Unified Family Court (UFC) Bench Guide: Eleventh Circuit County Judge Judge Amy Karan, Twelfth Circuit Family Court Manager Michelle Artman-Smith, Esquire; Lee County Sheriff s Department Corporal Pete Garcia, Department of Children and Families Contract Manager Kimberly Hoffman; FavorHouse of Northwest Florida, Inc. Director Fred Sulzbach; Florida Department of Law Enforcement Bureau Chief Jean Itzin, and Robin Thompson, Esquire.

5 DOMESTIC VIOLENCE BENCHBOOK TABLE OF CONTENTS CHAPTER 741 INJUNCTION FLOW CHART... 3 I. FLORIDA S INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE Domestic Violence Injunction Case Process and the Issues Associated With Each Stage... 5 Possible Warning Signs of Domestic Violence... 7 Consequences for Respondent Once a Final Injunction for Protection Against Domestic Violence is Entered... 7 Protocol for Domestic Violence Injunction Hearings... 8 Domestic Violence Checklist... 9 Domestic Violence Colloquy Best Practice Model on Child Support in Domestic Violence Cases Florida Firearms Legal Summary for Domestic Violence Cases Florida Firearms Checklist for Domestic Violence Cases Civil Domestic Violence/Unified Family Court (UFC) Bench Guide Related Unified Family Court Publications II. DOMESTIC VIOLENCE LEGAL OUTLINE Domestic Violence Background and Definitions: Domestic Violence Civil Proceedings: Evidence: Domestic Violence Criminal Proceedings: III. APPENDICES Ordering An Evaluation: When is Domestic Violence Expertise Necessary? Florida s Four Orders of Protection Against Violence: Distinguishing the Difference Dating Violence Checklist Sexual Violence Checklist Repeat Violence Checklist

6 Summary of 2008 Legislative Session Comparison of Injunctions Under Chapter 39 and Chapter Chapter 39 Injunctions Domestic Violence and Housing Protections in the Violence Against Women Act Security: A Model Family Court Essential Element

7 CHAPTER 741 INJUNCTION FLOW CHART Petitioner Completes, files petition with clerk or designee Petition (1), F.S. 1 and Supporting Documents 2 reviewed by Judge, ex parte issues order (4), F.S. earliest time possible Injunction Denied 3 - written reasons required (5)(b), F.S. Temporary Injunction Issued Return Hearing Set Return Hearing Set Injunction Denied - only ground for denial no appearance of imminent & present danger (5)(6), F.S. Temporary Injunction/ Hearing Extended (5)(c), F.S. No Service on Respondent (8)(a)1, F.S. Yes Alleged Violation (9)(a), F.S. Hearing (5)(c), F.S. Return Hearing within 15 days of filing petition Motions for Modification/Dissolution (6)(c), F.S (10), F.S. Final Injunction Issued (6)(a - c), F.S. Provisions Injunction set until specified date or until further order of the court Final Injunction Denied Service on respondent (8)(c), F.S. 1 Statutory citations are from the 2007 statutes 2 Supporting Documents - UCCJEA, Financial Affidavit, Confidential Address, Child Support Guidelines Worksheet 3 Petitioner may refile/submit supplemental affidavit 3

8 THE PETITIONER MUST BE A VICTIM OF DOMESTIC VIOLENCE OR IN IMMINENT DANGER OF BECOMING A VICTIM OF DOMESTIC VIOLENCE (1)(a), Florida Statutes. Domestic violence includes: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death to one family or household member by another family or household member (2), Florida Statutes. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence (6)(b), Florida Statutes. In determining whether petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court must consider all relevant factors alleged in the petition for injunction for protection against domestic violence, including, but not limited to: The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner s child or children. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives. Whether the respondent has intentionally injured or killed a family pet. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement. Whether the respondent has a criminal history involving violence or the threat of violence. The existence of a verifiable order of protection issued previously or from another jurisdiction. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner. 4

9 FLORIDA INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE TABLE OF CONTENTS Domestic Violence Injunction Case Process and the Issues Associated With Each Stage... 5 Possible Warning Signs of Domestic Violence... 7 Consequences Once a Final Injunction for Protection Against Domestic Violence is Entered... 7 Protocol for Domestic Violence Injunction Hearings... 8 Domestic Violence Checklist... 9 Domestic Violence Colloquy Best Practice Model on Child Support in Domestic Violence Cases Florida Firearms Legal Summary for Domestic Violence Cases Florida Firearms Checklist for Domestic Violence Cases Civil Domestic Violence/Unified Family Court (UFC) Bench Guide Related Unified Family Court Publications... 45

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11 DOMESTIC VIOLENCE INJUNCTION CASE PROCESS AND THE ISSUES ASSOCIATED WITH EACH STAGE (Note: Stages refer to court process; issues are things which the judiciary should consider) Stages First: Petition filed for protection from domestic violence Second: Court issues ex parte order granting or denying temporary injunction; return hearing set Issues Access to court/courthouse Employment, children, transportation, office hours Completion of forms usually pro se o Lengthy, confusing forms o Language/literacy o Denial/minimization of abuse as survival strategy o Emotional upset/agitation Increased danger Safety of persons and pets If temporary injunction issued respondent is served with injunction and notice of hearing often, a very angry reaction Most dangerous time for petitioners/victims separating or attempting to separate from partner Especially dangerous if court has scheduled a hearing without issuing a temporary injunction 5

12 Third: Court holds return hearing to determine whether final injunction will be granted Fourth: Enforcement of compliance with terms of injunction Access to court/courthouse Employment, children, transportation Safety of persons and pets Threats, violence to coerce petitioner to drop case Courthouse/courtroom safety issues Respondent s access to children through shared custody Unsupervised visitation Firearms issues Family support Custody and visitation provisions Child support/alimony Counseling, other services for victim and children (not part of injunction order) Safety No contact No violence Firearms surrender Treatment/family support BIP/other treatment for respondent Custody and visitation provisions Child support/alimony Fear who is responsible for tracking and enforcing compliance? (Often, it turns out to be the petitioner) 6

13 POSSIBLE WARNING SIGNS OF DOMESTIC VIOLENCE Respondent s: Prior violence Psychological factors acute depression, psychiatric history, extreme isolation, lack of support systems Increase in frequency and escalation in severity of violence Preoccupation, obsession, possessive with the victim Threats, fantasies, or attempts to kill or harm self or others Prior criminal behavior or injunctions Weapons owned by respondent, threats to use weapons, or recent purchases of weapons Substance abuse Choking, strangling Child abuse Stalking Animal abuse CONSEQUENCES FOR RESPONDENT ONCE A FINAL INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE IS ENTERED Injunction may require limited visitation with children, supervised visitation, the respondent to leave the residence, and/or pay support for minor children and/or petitioner. Under both state and federal law the respondent is prohibited from possessing firearms and ammunition. Law enforcement officers or anyone employed in a position that requires the use of weapons may be affected. Respondent s current employment status or employment applications may be affected. Professional licenses may be affected. Entry into the military may be affected. Admission to schools, colleges, and universities may be affected. Violation of a final injunction may affect a resident alien s application for citizenship, and may result in deportation if respondent is not a citizen. Final injunctions are enforceable in all fifty states, under the Full Faith and Credit Clause. Violation of a final injunction may result in arrest and charge of a first degree misdemeanor for each violation with a maximum sentence of one year under Florida law. If the respondent stalks the petitioner who has an injunction against him/her, the respondent may be charged with a second degree felony. 7

14 DO: PROTOCOL FOR DOMESTIC VIOLENCE INJUNCTION HEARINGS DO NOT: Use a courtroom rather than chambers for domestic violence injunction hearings and do have law enforcement officers present. Physically separate the petitioners and respondents in the waiting area and in the courtroom to ensure that there is no communication between them. Have the petitioners leave the courtroom before the respondents in order to lessen the risk of post-hearing danger. Use the services of a victim advocate in the courtroom. Timely grant temporary child support and award ancillary relief where it is appropriate. Carefully address visitation issues, keeping in mind safety of the parties and the children. Use the services of any available supervised visitation center when ordering that visitation must be supervised. Exercise your powers of civil contempt and indirect criminal contempt to enforce the domestic violence injunction. Let parties know that child support and visitation is temporary because it will terminate when the final injunction ends or when ordered in a related civil case. If they want request permanent child support and/or visitation they may file a different civil case/cause of action. Issue mutual injunctions. Order the petitioner to attend a batterer intervention program. Substitute an anger control program for a statutorily required certified batterer intervention program. Fail to order a respondent to complete a batterer intervention program merely because the respondent has a job which requires out-of-town work or long hours. Refer any case to mediation if there is a significant history of domestic violence between the parties which would compromise the mediation process. Award child custody, child support, or visitation rights to anyone who is not a legal parent, an adoptive parent, or a guardian by court order of a minor child or children. 8

15 DOMESTIC VIOLENCE CHECKLIST STANDING Petitioner and respondent must be family or household members (1)(e), Florida Statutes. Family or household member means spouses, former spouses, persons related by blood or marriage, persons who are presently living together as if a family or who have lived together in the past as if a family and persons who are parents of a child together regardless of whether or not they have been married or lived together (3), Florida Statutes. With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit (3), Florida Statutes. A minor child can file by and through a parent as next best friend. There is no minimum residency requirement. A petition may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the domestic violence occurred (1)(j), Florida Statutes. Petitioner must be a victim of domestic violence or in imminent danger of becoming a victim (1)(a), Florida Statutes. Domestic violence includes: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death to one family or household member by another family or household member (2), Florida Statutes. In determining whether petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court must consider all relevant factors alleged in the petition for injunction for protection against domestic violence, including, but not limited to: - The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse. - Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner. - Whether the respondent has threatened to conceal, kidnap, or harm the petitioner s child or children. - Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives. - Whether the respondent has intentionally injured or killed a family pet. - Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement. 9

16 - Whether the respondent has a criminal history involving violence or the threat of violence. - The existence of a verifiable order of protection issued previously or from another jurisdiction. - Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner. - Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence (6)(b), Florida Statutes. No bond shall be required for entry of an injunction (2)(b), Florida Statutes. EX PARTE (TEMPORARY) INJUNCTIONS Determine whether it appears to the court that an immediate and present danger of domestic violence exists (5)(a), Florida Statutes. The court can only consider the verified pleadings or affidavits unless respondent appears at the hearing or has received reasonable notice of the hearing (5)(b), Florida Statutes. If the ex parte (temporary) injunction is denied: If the court finds no basis for the issuance of an injunction, the petition may be denied without a return hearing; however, a denial of a petition for an ex parte (temporary) injunction shall be by written order noting the legal grounds for denial (5)(b), Florida Statutes. When the only ground for denial is no appearance of an immediate and present danger of domestic violence, the petition for ex parte (temporary) injunction may be denied but the court shall set a full hearing on the petition for injunction with notice at the earliest possible time (5)(b), Florida Statutes. If the ex parte (temporary) injunction is granted: Any such temporary injunction shall be effective for a fixed period not to exceed 15 days (5)(c), Florida Statutes. A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective (5)(c), Florida Statutes. The court may grant a continuance of the hearing before or during a hearing for good cause shown by either party, which shall include a continuance to obtain service of process (5)(c), Florida Statutes. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance (5)(c), Florida Statutes. 10

17 POSSIBLE RELIEF WITH EX PARTE (TEMPORARY) INJUNCTIONS Restrain respondent from committing any acts of domestic violence against petitioner or any member of petitioner s family or household members (5)(a)(1), Florida Statutes. Restrain respondent from contact with petitioner or any member of petitioner s immediate family or household. Florida Supreme Court Approved Family Law Forms (c)(1) and (c)(2). Award petitioner temporary exclusive use and occupancy of the dwelling that the parties share or excluding the respondent from the residence of the petitioner (5)(a)2, Florida Statutes. Exclude respondent from petitioner s place of employment or school. Florida Supreme Court Approved Family Law Forms (c)(1) and (c)(2). Exclude respondent from places frequented regularly by petitioner and/or any named family or household member of petitioner. Florida Supreme Court Approved Family Law Forms (c)(1) and (c)(2). Award temporary custody of a minor child or children of the parties on the same basis as provided in (5)(a)(3), Florida Statutes. A UCCJEA form must be filed by petitioner if seeking such relief (3)(d), Florida Statutes. Order respondent to surrender any firearms and ammunition in his or her possession to the specified sheriff s office pending further order of the court. Florida Supreme Court Approved Family Law Form (c)(2). Order such other relief as the court deems necessary for the protection of a victim of domestic violence, including injunctions or directives to law enforcement agencies as provided in this section (6)(a)(7), Florida Statutes. FINAL INJUNCTIONS The court shall allow an advocate from a state attorney s office, an advocate from a law enforcement agency, or an advocate from a certified domestic violence center who is registered under , Florida Statutes, to be present with the petitioner or respondent during any court proceedings or hearings related to the injunction for protection, provided the petitioner or respondent has made such a request and the advocate is able to be present (7), Florida Statutes. 11

18 All proceedings shall be recorded. Recording may be by electronic means as provided by the Rules of Judicial Administration (6)(h), Florida Statutes. Upon notice and hearing, when it appears to the court that the petitioner is a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim, the court may grant such relief as the court deems proper (6)(a), Florida Statutes. The final judgment of injunction for protection against domestic violence may: be effective indefinitely; until modified or dissolved by the judge at either party s request, upon notice and hearing; or expire on a date certain at the judge s discretion (5)(c), Florida Statutes, Florida Supreme Court Approved Family Law Form (e). The final injunction order must include the statement that the respondent (unless respondent is a law enforcement officer defined in , Florida Statutes, holding an active certification) may not have in his or her care, custody, possession or control any firearm or ammunition (6)(g), (1), Florida Statutes. POSSIBLE RELIEF WITH FINAL INJUNCTIONS In addition to the types of possible relief listed in the ex parte temporary injunction section, the court may also: Establish temporary support for a minor child or children. The temporary support, custody and or visitation provisions that are established in a permanent domestic violence injunction remain in effect until the order expires or an order, which addresses support, custody and or visitation, is entered in a pending or subsequent civil action (6)(a)(3-4), Florida Statutes. Refer the petitioner to a certified domestic violence center. The court must provide the petitioner with a list of certified domestic violence centers in the circuit (6)(a)(6), Florida Statutes. Order counseling for any minor children and order any other provisions relating to minor children. Florida Supreme Court Approved Family Law Form (d)(1), Florida Statutes. Order a substance abuse and/or mental health evaluation for the respondent and order the respondent to attend any treatment recommended by the evaluation(s) (6)(a)(5), Florida Statutes. Order the respondent to enroll and complete a certified batterer intervention program. It is mandatory that such programs be certified under , Florida Statutes. If the court orders the respondent to this type of program the court must provide the respondent with a list of all certified batterer intervention 12

19 programs and all programs that have submitted an application to DCF to become certified (6)(a)(5), Florida Statutes. Unless the court makes written factual findings in its judgment or order which are based on substantial evidence, stating why batterer intervention programs would be inappropriate, the court shall order the respondent to attend a batterer intervention program if: 1. It finds that the respondent willfully violated the ex parte injunction; 2. The respondent, in this state or any other state, has been convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence; or 3. At any time in the past in this state or another state, an injunction has been entered against the respondent after a hearing with notice (6)(e), Florida Statutes. Establish type of contact/visitation with minor child(ren) the noncustodial parent may have. Florida Supreme Court Approved Family Law Form (d)(1). Establish temporary alimony. Florida Supreme Court Approved Family Law Forms (d)(1) and (2). REQUIREMENTS FOR WRITTEN ORDERS TEMPORARY & FINAL A judgment should indicate on its face that: The injunction is valid and enforceable in all counties in Florida (6)(d)(1), Florida Statutes. Law enforcement officers may use their arrest powers pursuant to (6), Florida Statutes, to enforce the terms of injunction (6)(d)(2), Florida Statutes. The court had jurisdiction over the parties and matter. Reasonable notice and opportunity to be heard was given to respondent sufficient to protect that person s right to due process (6)(d)(3), Florida Statutes. The date respondent was served with the temporary or final order, if obtainable (6)(d)(4), Florida Statutes. Special requirement for final injunctions: A final injunction must, on its face, indicate that it is a violation of , Florida Statutes, and a first degree misdemeanor, for respondent to have in his or her care, custody, possession, or control any firearm or ammunition (6)(g), Florida Statutes. 13

20 ENFORCEMENT It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter. Consequently, criminal prosecution shall be the favored method of enforcing compliance with injunctions (2), Florida Statutes. The Florida Department of Law Enforcement has established and maintains a Domestic, Dating, Sexual and Repeat Violence Injunction Statewide Verification System capable of electronically transmitting information to and between criminal justice agencies relating to domestic violence injunctions issued by the courts throughout the state. The Department must have the respondent s name, race, sex, and date of birth. The court may enforce a violation of an injunction for protection against domestic violence through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under , Florida Statutes. The court may enforce the respondent s compliance with the injunction through any appropriate civil and criminal remedies, including but not limited to, a monetary assessment or fine (9)(a), Florida Statutes. 14

21 DOMESTIC VIOLENCE COLLOQUY Today we are holding final full evidentiary hearings on injunctions for domestic, repeat, sexual, and dating violence. The purpose of these hearings is to determine whether any temporary injunctions should be extended, any final injunctions should be entered, or any cases should be dismissed. If a final injunction is issued, please read it carefully and become familiar with its terms, conditions, and duration. It is possible that some of you in attendance today have been arrested or charged with a crime arising out of the same incident(s) which is the basis for this injunction. As required by law, this hearing is being recorded. If you are facing criminal charges you have the right to remain silent because anything you say can be used against you in your criminal case. If you have been arrested or charged with assault or battery on a victim, your release conditions probably include a provision of NO CONTACT with the victim, who may also be the petitioner in this injunction. This injunction hearing is a civil matter, separate from the criminal one, and regardless of whether or not a final injunction is issued or dismissed here today, THE CONDITIONS OF RELEASE INCLUDING ANY STAY AWAY ORDERS IN YOUR CRIMINAL CASE ARE NOT CHANGED, NOR ARE THE CRIMINAL CHARGES DISMISSED OR DROPPED. THAT CAN ONLY BE DONE BY THE JUDGE IN THE CRIMINAL CASE. Please make certain you understand all of the conditions of your release in the criminal case because a violation of the no contact provision/stay away order could result in your arrest for a first degree misdemeanor without bond, punishable by one year in jail, or one year s probation and/or a $1, fine. When your case is called, please come forward to be sworn and seated. I will first determine whether the petitioner has anything to add to the allegations in the petition and if petitioner can establish their case by the preponderance of the evidence. If the petitioner cannot establish the case, or does not wish to proceed with the case, I will dismiss it without the need for further testimony. Petitioners are reminded that you signed your petition under penalty of perjury, and, therefore, can be charged with a crime if you provided untruthful answers or allegations in your petition. Perjury is a third degree felony punishable by up to 5 years in the state prison. All testimony taken today, including witness testimony will also be taken under oath. If the case goes forward, the respondent will then be allowed the opportunity to fully respond to the testimony and evidence presented. Each party will be allowed to call any witnesses and present any evidence they may have. If the petitioner does not appear for the scheduled hearing today, the case may be dismissed. If the respondent does not appear because service of the temporary injunction was not obtained, we will reset the hearing for a later date. If the respondent has been served and 15